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Hit List or Free Speech?

A key decision on what constitutes a 'true threat' is revisited in the wake of the September terror attacks.

In one of the highest-profile cases of 2001, the United States Court of Appeals for the 9th Circuit reversed a multi-million dollar jury verdict in the "Nuremberg Files" litigation — an action claiming that pro-life activists used WANTED-style posters, Internet hit lists, and other forms of protest to create a climate of fear and danger for abortion providers. Planned Parenthood v. Am. Coalition of Life Activists, 244 F.3d 1007 (9th Cir. 2001).

Legal scholars were not surprised by the court's decision — the jury's verdict had been controversial on First Amendment grounds. What did catch some scholars off-guard was the court's recent decision to withdraw its first opinion and order the case reargued.

The rehearing order came more than six months after the original decision, but a mere three weeks after the Sept. 11 attacks — and that timing may not have been coincidental.

The Nuremberg Files litigation began in 1995, when abortion providers sued the American Coalition of Life Activists (ACLA), Advocates for Life Ministries and 14 individuals for engaging in "harassment, intimidation and threats of violence in order to cause violent acts and to drive plaintiffs out of business."

ACLA and the other defendants argued that the First Amendment shielded them from liability.

But the court did not buy the First Amendment argument in its entirety, leaving the jury to decide whether ACLA's free speech rights extended to certain posters and a website known as "The Nuremberg Files."

The site, created by Neal Horsley (see The Propagandist) using information provided by ACLA, included a list of approximately 200 doctors under the heading "ABORTIONISTS: the shooters."

Many names were linked to photographs and detailed identifying information. Perhaps the most chilling feature of the site was the legend explaining the significance of certain typefaces: "Greyed-out Name (wounded); Strikethrough (fatality)." Although neither contained explicit exhortations to violence, the jury determined that both the posters and the website — quite ominous in context — constituted "true threats," a characterization that stripped them of all First Amendment protection.

The jury awarded the plaintiffs $107 million in damages, and the court enjoined the posters and imposed substantial limitations on what could be published on the website.

The Court Reconsiders
Horsley, the website's creator, has never paid the slightest bit of attention to the injunction, declaring that nothing short of his arrest would stop him. "This court case won't shut me up," he said.

As a result, the only interruptions in the availability of the "Nuremberg Files" have resulted from decisions by private Internet Service Providers to discontinue Horsley's service. As of this January, the site was fully functional and included a long list of names.

In March 2001, the 9th Circuit threw out the damages award and vacated the injunction. The court held that neither the posters nor the website constituted "true threats" because they had not "authorized, ratified, or directly threatened acts of violence." Planned Parenthood, 244 F.3d at 1014.

The court viewed the posters and website as indistinguishable from the constitutionally protected comments of an NAACP activist — warning "that boycott breakers would be 'disciplined' and ... that the sheriff could not protect them at night" — at the heart of a famous Supreme Court opinion. Id. (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 902 (1982)).

Noting that "[e]xtreme rhetoric and violent action have marked many political movements in American history," the 9th Circuit concluded that if the NAACP activist's "speech was protected by the First Amendment, then ACLA's speech is also protected." Id. at 1014, 1019. Planned Parenthood immediately asked the court to reconsider, but six months elapsed without a word from the court. On Oct. 3, the 9th Circuit withdrew its prior opinion and ordered the case reargued before a larger panel of judges.

Several judges at the Dec. 11 rehearing appeared skeptical of the plaintiffs' argument that the posters and Web site constituted threats. As one judge pointedly asked: "Who was going to do what to whom?" The court has no timetable for deciding the case.

It is hard to ignore the possibility that the decision to rehear the case was motivated, at least in part, by the terrorist attacks on the World Trade Center and the Pentagon.

The last few months have witnessed a sea change in criminal procedure: secret tribunals from which even elected representatives are excluded, a drastic curtailment of the attorney-client privilege, suspicionless interrogation and racial profiling.

In the wake of Sept. 11, courts may be less inclined to afford First Amendment protection to speech that intentionally "encourage[s] unrelated terrorists," or makes "it easier for any would-be terrorists to carry out their gruesome mission." Planned Parenthood, 244 F.3d at 1015, 1016.